Curtis and Percy & Anor
[2018] FamCA 221
•16 March 2018
FAMILY COURT OF AUSTRALIA
| CURTIS & PERCY AND ANOR | [2018] FamCA 221 |
| FAMILY LAW – CHILDREN – Interim – Where the Department of Families and Communities (NSW) have intervened in the proceedings – Where the children are currently in foster care – Where the father seeks an order that the children be returned to his care – Where the Court cannot be satisfied that returning the children to the care of the father on an interim basis would not expose them to the unacceptable risk of physical harm and exposure to violence – Order that the Minister for Families and Community Services have parental responsibility for the children – Order that the children spend time with each parent as arranged and supervised by the Minister for Families and Community Services FAMILY LAW – CHILDREN – Where the father seeks an order that the independent children’s lawyer be discharged – Where the father seeks an order for the removal of the single expert psychiatrist – Applications dismissed |
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Family Law Act 1975 (Cth)
| Aldridge & Keaton (2009) FLC 93-421 Baghti & Baghti [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 Bondai & Bretton (No 2) [2010] FamCA 1237 Bondelmonte & Bondelmonte (2016) 259 CLR 662 Briginshaw v Briginshaw (1938) 60 CLR 336 Donnell & Dovey (2010) FLC 93-428 Goode & Goode (2006) FLC 93-286 Johnson & Johnson (2007) FamCA 229 M and M (1988) 166 CLR 69 Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638 Marvel & Marvel (No.2) (2010) 43 Fam LR 348 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Newport & Newport [2016] FamCA 1066 Potts & Bims [2007] FamCA 394 SCVG & KLD (2014) FLC 93–582 Valentine & Lacerra and Anor (2013) FLC 93-359 |
| APPLICANT: | Mr Curtis |
| RESPONDENT: | Ms Percy |
| INTERVENOR: | The Secretary, Department of Family and Community Services (NSW) |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Lismore Family Law |
| FILE NUMBER: | LEC | 199 | of | 2008 |
| DATE DELIVERED: | 16 March 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 13 March 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Donaghy |
| SOLICITOR FOR THE RESPONDENT: | Ms Ekanayake |
| COUNSEL FOR THE INTERVENOR: | Ms Neville |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Wilkin |
Order
Paragraphs 2, 3 and 4 of the Application in a Case filed by the father on 9 March 2018 be dismissed.
All previous parenting orders be discharged.
Paragraph 15 of the Order made by this Honourable Court on 17 January 2018 be discharged.
The father attend upon Dr B to be psychiatrically assessed at 10.00 am on 11 April 2018 or at any other reasonable time as he may be advised by the independent children’s lawyer.
Until further order the Minister for Families and Community Services (NSW) have parental responsibility for the children C born … 2013 and D born … 2015 and live as directed by the Secretary, Department of Family and Community Services (“the intervenor”).
The children spend time with the mother as arranged and supervised by the intervenor or his nominee.
The children spend time with the father as arranged and supervised by the intervenor or his nominee.
The father and mother each comply with all reasonable requests and directions of the intervenor.
All parties have liberty to apply on the giving of 48 hours’ notice to each other party.
Any extant interim application be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Curtis & Percy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: LEC 199 of 2008
| Mr Curtis |
Applicant
And
| Ms Percy |
Respondent
REASONS FOR JUDGMENT
These proceedings concern two children D born in 2015 and C born in 2013 (“the children”). The children are currently in foster care where the Secretary, Department of Families and Communities (NSW) (“the intervenor”) propose they remain at this time.
The parents of the children are Mr Curtis (“the father”) and Ms Percy (“the mother”).
The father wants the children to be returned to his care.
The mother and the independent children’s lawyer support the children remaining in foster care at this time.
background
This matter first came before me for a case management hearing on 17 January 2018 when the matter was listed for trial for five days commencing 16 July 2018.
At that time the children were living with the father and had not spent any time with the mother for well over 12 months despite there being an order for her to spend supervised time with them at a contact centre.
The children are identified in the material as of Aboriginal descent but no submissions were made in relation to that particular aspect.
The father is 42 years of age and in receipt of a disability support pension.
The mother is 33 years of age and also in receipt of a disability support pension.
The parents were in a relationship from 2003 until March 2016. They are not married.
The mother and father have two other children, namely, E born in 2011 and F born in 2006.
E and F were removed from the parents on 28 October 2011 and a final order was made by the Children’s Court at G Town on 15 August 2012 allocating parental responsibility of E and F to the Minister for Family and Community Services until the children attain the age of 18 years.
On 13 February 2018 the Children’s Court at G Town made an Emergency Care and Protection Order placing the children, D and C, into the care of the Minister for Family and Community Services. That order was due to expire on 27 February 2018 but was extended by the filing of an Application to Extend on 27 February 2018 and by order of the G Town court on 1 March 2018 for another temporary period expiring on 13 March 2018 or perhaps on 14 March 2018.
The intervenor filed an Application in a Case on 20 February 2018 in which the following order was sought:
1.This application be heard on short notice.
2.That all previous parenting orders be discharged.
3.Pending further order, that the Minister for Family and Community Services be allocated parental responsibility for [C (“C”)] born … 2013 and [D (“D”)] born … 2014 (known together as “the children”).
4.The children live as directed by the Secretary, Department of Family and Community Services (“the Secretary”).
5.The children spend time with the mother as arranged and supervised by the Secretary or his delegate.
6.The children spend time with the father as arranged and supervised by the Secretary or his delegate.
7.The father and the mother are each to comply with all reasonable requests and directions of the Department of Family and Community Services.
8.The Intervener and the Independent Children’s Lawyer each have leave to relist the matter on the giving of forty-eight (48) hours’ notice to the other parties and to the Court.
That Application first came before me on 26 February 2018. On that date the father sought leave to make an oral application that I recuse myself on the ground of apprehended bias arising out of the hearing on 17 January 2018. As the father did not have a transcript of those proceedings the matter was adjourned until 13 March 2018. The father also foreshadowed an application to remove the independent children’s lawyer and the single expert psychiatrist, Dr B.
The following order was made on 26 February 2018.
UPON THE UNDERTAKING of [Mr Curtis] that he will take no steps to attempt to recover the possession of the children [C] born … 2013 or [D] born … 2015 until further order of this Court or the Children’s Court of New South Wales
IT IS ORDERED THAT
1.Any application made by the Father for a transcript of the proceedings before Justice Carew on 17 January 2018 shall be prepared as a matter of urgency.
2.The Father file and serve any application and supporting affidavit relating to any or all of the following matters:
a.Recusal of Justice Carew;
b.[Dr B] being removed as the single expert; and/or
c.Removal of the Independent Children’s Lawyer
by 12.00 noon (Queensland time) on 9 March 2018.
3.The Application in a Case filed by the intervener on 20 February 2018 and any Application in a Case as referred to in the preceding paragraph be adjourned for hearing before Justice Carew at 2.00 pm on 13 March 2018.
4.Each party has liberty to apply on the giving of 48 hours’ notice in writing to the other parties.
5.The Father and his legal representatives be granted leave to appear by telephone at the hearing on 13 March 2018.
NOTATION
A.By 27 February 2018 the Father is to sign and file the Undertaking he provided to the Court that he will take no steps to recover the possession of the children [C] born … 2013 or [D] born … 2015 until further order of this Court or the Children’s Court of New South Wales.
B.It is noted that the intervenor intends to make an application to the Children’s Court in New South Wales for an extension of the child protection order made on 13 February 2018 pending the matter returning to this Court.
No undertaking has been filed by the father.
The father filed an Application in a Case on 9 March 2018 in which the following order was sought:
1.That the Honourable Justice Carew disqualify herself from any further involvement in these proceedings on the ground of apprehended bias.
2.That the Orders made by this Honourable Court on the 17 January 2018 be discharged.
3.That the Independent Children’s Lawyer, Mr Brett Wilkin be discharged from his appointment.
4.That [Dr B] appointment by this Honourable Court as Joint Psychiatric Expert be discharged.
5.That the Intervener pay the costs of the Applicant Father as agreed or assessed for:
a.The costs of this Application in a Case;
b.The costs of the Application in a Case filed by the Intervener 7 February 2018;
c.The costs of these proceedings in the Family Court of Australia since commencement to date.
6.Such further Orders that this Court deems appropriate.
On 13 March 2018 I heard and dismissed the application that I recuse myself and reserved my decision on the balance of the father’s Application and the Application in a Case filed by the intervenor on 20 February 2018.
I note that this matter was interposed during another trial at 2.00pm on 13 March 2018 and did not conclude until 6.45pm. The father was invited to agree to continue to be bound by the undertaking provided to the Court on 26 February 2018 pending delivery of judgment but agreement was not forthcoming. As counsel for the intervenor informed me that the emergency care and protection order would likely expire at midnight on that day I made a temporary Order pending delivery of my judgment, in the terms of paragraphs 3, 4, 5 and 6 of the intervenor’s Application in a Case.
In relation to the remaining matters for determination the respective positions of the parties were as follows:
a)The father pressed for an order in terms of paragraphs 2, 3 and 4 of his Application in a Case filed 9 March 2018 and opposed the order sought in the Application in a Case filed by the intervenor on 20 February 2018;
b)The mother and independent children’s lawyer opposed the order sought by the father and supported the order sought by the intervenor;
c)The intervenor did not wish to be heard in relation to the father’s application to remove the independent children’s lawyer (paragraph 3) but opposed the order sought in paragraphs 2 and 4 and pressed the order sought in the Application in a Case filed 20 February 2018.
The father’s case
Discharge of Order made 17 January 2018
While the father sought the discharge of the entire order made 17 January 2018 submissions were limited to paragraph 15 of that order which provided:
15. The Applicant shall attend upon [Dr B] to be psychiatrically assessed on a date to be advised by the Independent Children’s Lawyer and any costs associated with that are to be met at the first instance by the Applicant.
The reasons submitted for the discharge of paragraph 15 were as follows:
a)The Court was misled by the independent children’s lawyer on 17 January 2018 when he informed the Court that the father did not attend the appointment with [Dr B] on 11 January 2018;
b)The father had been informed that the appointment was at 2.00pm and he arrived outside [Dr B’s] rooms at 2.00pm to be told by [Dr B’s] receptionist by telephone that as he was late he should not bother coming into the surgery as he would not be seen;
c)The behaviour of the receptionist was unreasonable;
d)The father cannot afford to pay for the appointment because his only source of income is a disability support pension and he has no ability to pay.
As the independent children’s lawyer indicated that the legal aid office would pay for the report, the father’s capacity to pay can be determined at trial, if a contribution from the father to Dr B’s fees are sought.
The discharge of the independent children’s lawyer
The reasons submitted on behalf of the father for the discharge of the appointment of the independent children’s lawyer were as follows:
a)The independent children’s lawyer misled the Court on 17 January 2018 by telling the Court that the father had failed to attend the appointment with Dr B when the father did attend and by failing to bring to the attention of the Court that the father had been told that the appointment with Dr B was at 2.00pm;
b)The independent children’s lawyer misled the expert, Dr B, in a letter of instruction sent to Dr B on 9 January 2018 without consultation with the father in which it was stated inter alia:
i)‘Summary of Significant Issues’- ‘Details of any involvement by the Department of Child Safety’: Elder siblings ([F] and [E]) removed due to DV and sexual abuse. Child made clear disclosures of sexual abuse by father however no criminal charges were pursued against the father;
c)At the time of writing that letter of instruction, the independent children’s lawyer knew that the father had faced criminal charges but had been acquitted;
d)The effect of that incorrect information was to create an impression that the father was a paedophile and that impression formed the basis for Dr B’s receptionist to treat the father in such an unreasonable manner;
e)The letter of instruction was not provided to the father until 9 February 2018;
f)The reason it was not provided is because the independent children’s lawyer knew that it would have been objected to by the father;
g)The independent children’s lawyer failed to respond to the father’s letter dated 16 February 2018 in which he sought an explanation as to why the letter of instruction was not provided until 9 February 2018;
h)The only inference that can be drawn from that failure is that it was a “deliberate tactic to sabotage the psychiatric assessment process”;
i)The independent children’s lawyer is merely a mouthpiece for the Department;
j)The independent children’s lawyer failed to respond to the father’s letter dated 21 February 2018 in which certain specified information was sought about the source of information contained in the letter of instruction.
The removal of Dr B as the single expert:
a)The actions of the independent children’s lawyer have poisoned Dr B against the father;
b)The father is falsely regarded as a child molester as evidenced by the unreasonable treatment of the father by Dr B’s receptionist;
c)The damage cannot be overcome by Dr B receiving information from the father;
d)The father cannot get a fair hearing from Dr B given the circumstances.
The independent children’s lawyer’s response
In resisting his removal, the independent children’s lawyer submitted:
a)The statement made at transcript reference page 5 line 36 viz. that the father did not attend, was clarified at transcript reference page 6 line 12 to 20.[1] It is factual that the appointment made on 11 January 2018 with Dr B did not occur and the information the independent children’s lawyer had was that the father arrived at 2.10pm when the father was supposed to be at the appointment by 1.45pm and had been informed of that by the receptionist on the morning of the 11 January 2018;
b)While it is accepted that the letter of instruction was not provided to the father until 9 February 2018 the father has not had his appointment and any deficiency or inaccuracy can be addressed as suggested in the independent children’s lawyer’s letter to the father dated 20 February 2018 (annexure F to the father’s affidavit filed 9 March 2018);
c)The letter of instruction is not biased. It sets out the issues before the court from the mother’s perspective and the father’s perspective and encloses a list of relevant documents. The matters complained about in the particular part of the letter of instruction, set out the history of involvement of the Department and specifically that the child, F, made a disclosure of sexual abuse against the father. They do not purport to express any view formed by the independent children’s lawyer nor, in particular, does the letter state that the father is a paedophile. Findings of fact and in particular the allegations concerning sexual abuse of F are a matter for the trial judge;
d)Reliance was placed on Bondai & Bretton(No 2)[2] a decision of O’Reilly J in which Her Honour dismissed an application to discharge the independent children’s lawyer. Her Honour referred to the relevant principles by reference to the authorities and in particular by the adoption of the following:
A court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However that does not mean he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step.
It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not “on side” or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated that consideration ought be given to removing a child representative”.
[1] Transcript of the proceedings on 17 January 2018 Annexed to the father’s affidavit filed 9 March 2018
[2] [2010] FamCA 1237
In resisting the removal of Dr B the independent children’s lawyer submitted:
a)The letter of instruction can be addressed by the father correcting what he contends is inaccurate;
b)Dr B is a professional witness well used to dealing with contested factual issues;
c)The family report writer, Mr H, recommended that a psychiatric assessment be obtained for the parties yet the father is seeking the removal of the expert but not his replacement;
d)Dr B is bound by the duties of any expert as set out in the Family Law Rules;
e)The appropriate way to deal with any allegation of bias by the expert is in cross-examination;
f)Discharge of the expert or indeed the independent children’s lawyer will result in further delay and the likely adjournment of the trial.
The intervenor’s response
In resisting the removal of the expert, Dr B, the following submissions were made:
a)The same principles that apply to an application for a judge to recuse himself or herself apply, namely, whether a fair-minded lay observer might reasonably apprehend that the expert might not bring an impartial and unprejudiced mind to the resolution of the question the expert is required to decide (Newport & Newport[3]);
b)The enquiry is a three step process – “First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to the matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case.”[4]
c)Applying those principles it was submitted that:
i)The evidence is insufficient to establish that Dr B has an opinion about the father as submitted on behalf of the father. The letter of instruction was accompanied by a number of documents including the affidavit of Ms J filed 17 October 2016 which gives a detailed account of the Department’s involvement and in particular that a) there was an allegation made of sexual abuse against the father b) the allegation was referred for investigation to the police c) there was a decision made to charge the father d) the charges were dismissed and a final Apprehended Violence Order was made against the father;
ii)As to the second limb it must be remembered that it is a routine occurrence for an expert to consider competing allegations and versions of events. An expert is required to retain an open mind;
iii)While it was submitted on behalf of the father that he was treated harshly and unreasonably by Dr B’s receptionist and that ‘no one wants to speak to a paedophile’, it is common for experts to speak to and assess people accused of such matters. It was of course the receptionist and not Dr B who is alleged to have treated the father in the manner alleged;
iv)Dr B is bound by the duties that bind all experts. His first duty is to the court and absent cross-examination it is difficult for the father to maintain his submission that the expert will not approach the matter with a fresh consideration.
[3] [2016] FamCA 1066 at [50] and [54]
[4]Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 564 [185]
discussion
The principles to be applied in considering an application to discharge the appointment of an independent children’s lawyer or an expert are set out in the authorities to which I have been referred and the relevant parts thereof are quoted above and I adopt those principles.
In this case, I am not persuaded that the independent children’s lawyer should be discharged and my reasons for that conclusion are:
a)Any perception created by the statement made during the hearing on 17 January 2018, that the father did not attend the appointment with Dr B, was clarified shortly thereafter;
b)The fact is that the father’s appointment did not occur and had to be re-arranged at further cost;
c)I propose to discharge that part of the Order made 17 January 2018 which required the father to pay the cost of the further appointment in the first instance but the independent children’s lawyer is at liberty to make application for the father to contribute to the costs thrown away and any such application can be heard at trial;
d)The letter of instruction prepared by the independent children’s lawyer should have been provided to the parties for their input prior to it being sent to Dr B, however, Dr B has not yet met the father and will have the opportunity to review all the material sent to him should the doctor choose to do so. Any inaccuracies in the letter of instruction can be the subject of amendment and brought to Dr B’s attention;
e)While the letter of instruction did contain the statement about which complaint is made it is clear on the face of the letter that there are competing allegations. In addition there were a number of documents enclosed with the letter providing further detail and in particular that the father was charged and the matter proceeded to court. The information provided stated that the charges had been dismissed.;
f)It must be remembered that the independent children’s lawyer does not determine any issues in dispute and the court is not bound by any recommendation that may be made by an independent children’s lawyer;
g)This matter has been set down for trial to commence in July 2018 and discharging the independent children’s lawyer would likely result in an adjournment of the trial for the reasons given by the independent children, namely, the file would have to be sent to a private lawyer. I consider that it is in the best interests of the children to have the matter finally determined at a trial without delay. It must be said that if I were otherwise satisfied that the independent children’s lawyer should be discharged the attendant delay may not of itself result in the independent children’s lawyer remaining;
h)I reject the submissions made on behalf of the father that the independent children’s lawyer has poisoned the mind of the expert or that he has become a mouthpiece for the Department or that the other inferences suggested should be drawn.
In this case, I am not persuaded that the expert should be removed and my reasons for that conclusion are:
a)Dr B is a very experienced psychiatrist and I accept the submission made on behalf of the intervenor that it would be routine for him to deal with cases in which heinous allegations are made and competing versions of events are given;
b)Dr B is an expert and is bound by the duties required of every expert;
c)There is no evidence whatsoever of Dr B having formed any opinion about the father. He has not yet met the father;
d)Any suggestion of bias can be appropriately addressed with Dr B during cross-examination;
e)It must be remembered that Dr B is not making findings of fact. His role is to psychiatrically assess the parties based on the information provided from all sources and from his own observations;
f)Removing Dr B may well result in an adjournment of the trial although that would not of itself determine this issue.
Should a parenting order be made as sought by the intervenor
The children are living together in a short term ‘out of home care’ placement, known as K Group, in L Region of New South Wales. I am prepared to infer for the purposes of these proceedings that as s 136 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) provides that ‘out of home care’ must be provided by an authorised carer, that the current placement of the children is authorised.
The children are reported to be sleeping and eating well but have been physically violent towards each other and the pets in the placement.
The children’s exact whereabouts have not been disclosed to the father because of the alleged history of stalking and abuse by the father of child protection case workers that allegedly resulted in an Apprehended Violence Order being made against the father. The intervenor is in the process of making arrangements for the mother to spend supervised time with the children and, if it is considered safe for the children and supervising staff, the intervenor will make arrangements for the father to spend supervised time with the children.
The intervenor submits that an order for parental responsibility should be made in favour of the Minister for Family and Community Services for the following reasons:
a)On 30 January 2018 the Department received a risk of significant harm report in which the notifier reported:
i)Observing the father kick C in the abdomen;
ii)Observing the father shake D violently and pulled him by the hair and threw him on the concrete;
iii)The father is a chronic alcoholic drinking daily and passing out in bed.
b)On 8 February 2018 the Department received a risk of significant harm report in which the notifier reported:
i)Observing bruising on the child, C;
ii)The child complained that the father had hit him around the head.
c)On 8 February 2018 Ms J, child protection case worker, attended at C’s preschool in the company of Mr M, case worker, for the purpose of interviewing C. A handwritten account of that fifteen minute interview is annexed to the affidavit of Ms J. C referred to the father as alternatively “[Mr Curtis]” or “Dad”. The notes set out a summary of a series of questions and answers including:
Question: not so good about [Mr Curtis], makes you sad
C: he hits my head lots of times
…
I get him beers so he keeps [illegible]
Hits me lots of times on head
…
Q: what does he hit you with
C: a stick
…
Q: Does [Mr Curtis] hit anyone else?
C: No. He hits D, 2 – 4 times
Q: Where?
C: on the back
…
Q: When did he hit you?
C: when he let the dog out
…
Q: When dad hits you is anyone else there?
C: D
Q: no one else?
C: Nanny and D
…
Q: When dad hits you does he use fist or flat of hand
C: (clenches fist)
…
Q: He hits with a fist
C: Yes
Q: And a stick
C: Yes
…
d)Ms J deposes to having observed what appeared to be a bruise on the bridge of C’s nose and a bruise on his right eye lid;
e)Ms J and Mr M took the children to Dr N, a paediatrician who took photos of the bruising (surprisingly the photos are not in evidence nor is there a report from Dr N);
f)Ms J deposes to having been present when C said to Dr N – “I have a sore head because [Mr Curtis] hits me a lot”;
g)Dr N was unable to say whether or not the bruising was accidental;
h)The Department has been involved with the family for some years and there was history of significant difficulty in being able to see and meet with the children prior to them being removed from the father;
i)The father has refused to engage with any case worker since about 2013 and the case worker has not been permitted by the father to visit the children at his home;
j)On 8 June 2018 a risk of significant harm report was received alleging that the father had made verbal threats to his neighbours including a threat to rape a 15 year old girl who lived at the property and a threat to burn down their home. The father was further alleged to have made threats to police investigating the allegations;
k)The father was charged in relation to the threats and refused bail for a period of time;
l)During the period of his remand in custody the children were cared for by the paternal grandmother;
m)On 29 November 2017 the father pleaded guilty in relation to the charges and was placed on a good behaviour bond for a period of 18 months and a final Apprehended Violence Order was made in favour of the neighbours;
n)There are reported previous behaviours of the father towards child protection case workers including stalking resulted in an Apprehended Violence Order being made against the father;
o)The father does not specifically address in his affidavit, the matters raised by C in the interview conducted on 8 February 2018;
p)If this were the only contact that the Department had had with the father the removal of the child might be considered unwarranted but during the period 2006 to October 2011 the Department has received approximately 60 risk of harm reports in relation to the children F and E raising a number of concerns including:
i)Domestic violence between the father and mother with both parents being perpetrators;
ii)Substance abuse by both parents;
iii)Mental health concerns for both parents;
iv)Inadequate supervision and neglect;
v)School absenteeism;
vi)Failing to thrive;
vii)Marijuana plants observed by case workers at the parent’s home;
viii)Allegations that the father has sexually assaulted F resulting in the concern being substantiated;
q)Risk of significant harm reports were first received in February 2013 in relation to C being born and the risk of exposure to domestic violence and reports in relation to D were first received in October 2014 prior to his birth;
r)In 2015 the parents refused to co-operate with case workers who were investigating ongoing concerns;
s)Between February and June 2016 six risk of significant harm reports and eight non-significant risk or harm reports were received in relation to the children raising issues of exposure to domestic violence; risk of sexual abuse; risk of psychological harm and risk of physical abuse;
t)During a telephone conversation between Ms J and the mother on 12 February 2018 the mother informed Ms J a number of things including:
i)The father accused the mother of making a notification to the Department about him;
ii)The father is trying to get her number;
iii)The father told the mother’s aunt that if he does not get the children back in a week he will go on a rampage; that he will bash the mother’s brother; that he will ‘take her out’ and ‘take himself out’;
iv)The father used to hit her around the head when they were together as it did not leave marks.
u)The father has an extensive criminal history including a history of violence against the NSW Police and officers employed by the Department;
v)Judge Spelleken requested the Department to intervene in the proceedings;
w)The risk of harm if the children remain with the father is unacceptable and it cannot be ameliorated by supervision by the paternal grandmother who has indicated her disbelief that the father has harmed the children’;
x)Reliance was placed upon Johnson & Johnson (2007) FamCA 2135 and in particular at [68] and [71] as to the appropriate assessment of risk.
The father’s response
It was submitted on behalf of the father that the evidence annexed to the father’s affidavit filed 9 March 2018 establishes that the children are well cared for by the father and not at risk in his care.
The material annexed includes a letter from Dr O, the children’s General Medical Practitioner who says inter alia that he has seen the children on numerous occasions since 2016 and also frequently observed them during consultations with the father and his mother. He says:
At none of their formal consultations nor when observed in other consultations has there been any bruising, behaviour or evidence of physical abuse noted. The boys have always been clean and appropriately dressed. Family interactions and behaviour have been appropriate and caring.
C attended at an optometrist practice on 31 October 2016, 22 May 2017 and 4 January 2018 and is described as a “very cooperative, happy, clean boy”.
C’s pre-school supervisor provided a number of letters dated 11 May 2016, undated, 3 November 2016 and 12 February 2018 stating that C was very settled and happy at pre-school and is always happy to give his father a hug goodbye and is happy to see his father at the end of the day. C is said to often talk about the father and about the activities they enjoy together. D is also described as happy and regularly attending each week for several days. They are said to be provided with healthy morning tea and lunch.
A number of incident reports from the pre-school are also annexed to the father’s affidavit. On 1 February 2018 C was noted as having suffered an injury to his left eye as a result of a fall resulting in bruising to the corner of his left eye.
It was submitted on behalf of the father that there is an hysterical approach to the father by the Department and an inability to look past the emotion to the facts. It was submitted that the independent evidence supports that the children were well cared for and progressing well in the care of the father.
It was contended that the children are suffering as a result of not being able to see the father.
It was further submitted:
a)The Department has concealed information favourable to the father;
b)The father has been denied natural justice;
c)There is doubt that the alleged interview with C on 8 February 2018 even took place;
d)The Court should not accept the alleged statements of a four year old boy;
e)The Department have engaged in the disreputable practice of ‘verballing’ the child;
f)The Departmental officers believe the father to be a child molester and are biased against him;
g)There has been no report made to the Department by a person required at law to report (counsel for the intervenor took issue with this submission by reference to s29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) which protects the identity of all notifiers without exception).
principles applicable to an application for a parenting order
The applicant for a parenting order in this case is not a parent. However a parenting order can be applied for by “any other person concerned with the care, welfare or development of the child” (see s 65C of the Family Law Act 1975 (Cth) “the Act”) and a parenting order can be made in favour of a parent of the child “or some other person” (see s 64C of the Act).
The intervenor was requested to intervene in the proceedings by a judge of the Federal Circuit Court pursuant to s 91B of the Act.
I am satisfied that the intervenor is entitled to bring the application and that there is no legal impediment to making an order in the form sought. No submission was made to the contrary.
Although these proceedings are between the parents and a non-parent the provisions of Part VII of the Act apply so far as relevant.[5] The best interests of the children remain the paramount consideration (see s 65AA of the Act).
[5] Donnell & Dovey [2010] FamCAFC 15; Aldridge & Keaton (2009) FLC 93-421; Potts & Bims [2007] FamCA 394
There is no presumption in favour of a parent.[6]
[6]Valentine & Lacerra and Anor (2013) FLC 93-359 at [72]
Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper[7], but such consideration will focus in particular on issues that will be determinative at an interim hearing. As the Full Court observed in Banks & Banks[8]:
48. … By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49. … It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93–582.
50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
[7]Goode & Goode (2006) FLC 93-286
[8](2015) FLC 93-637
In any event, whether the hearing is interim or final, the Court is not required to make findings of fact on every factual dispute raised by the parties.[9]
[9]Baghti & Baghti [2015] FamCAFC 71
Consideration of the particular issues raised by the parties will be considered within the context of the legislative pathway.
Section 60B sets out the objects and principles to be applied when considering what parenting order is proper.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child so far as they are relevant. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[10]
[10] Banks & Banks (2015) FLC 93-637
In Bondelmonte & Bondelmonte[11] the High Court observed:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
[footnotes omitted]
[11] (2016) 259 CLR 662 at 673
In Marvel & Marvel (No.2)[12], the Full Court said:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.
[12] Marvel & Marvel (No.2) (2010) 43 Fam LR 348 at [120]
In Johnson & Johnson[13] the Full Court considered the approach to assessing risk and said:
[13] Supra
68. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1 The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
71. We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited[1990] HCA 20; (1990) 169 CLR 638).
discussion
I do not consider that it is appropriate for the presumption set out in s 61DA to apply in this case for the following reasons (see s 61DA(3)):
a)The intervenor is not a parent;
b)The children have been removed from the care of the father;
c)The children have not spent any time with the mother for well over a year;
d)There are very serious allegations of family violence made against both parents that cannot be determined at an interim hearing.
Despite the father relying upon evidence that suggests he is providing appropriate care for the children I am troubled by his failure to specifically address in his affidavit any of the very serious allegations made against him. The tone of the submissions made on the father’s behalf gave the impression that the father is entirely innocent of all allegations and is a victim of smear and innuendo. Indeed the father’s solicitor stated that he would not ‘traffic in the filth of anonymous allegations’. It was repeatedly submitted on his behalf that the father had been found ‘not guilty’ of the indecent dealing charge in relation to his daughter. However, a failure of a criminal prosecution does not determine the issue of unacceptable risk in these proceedings.
In relation to the evidence relied upon by the father:
a)Dr O will certainly be a witness that I expect the father will want to obtain an affidavit from for the purposes of the trial (although I note the father did not indicate that at the case management hearing). Dr O’s evidence certainly raises no issue of concern and indicates the father may well be a parent capable of providing for his children with perhaps the assistance of his mother. However his last consultation with C was 6 September 2017 and with D on 3 November 2017. It is not apparent from his letter that he has seen the children on occasions after those dates;
b)The observations made by the optometrist practice were on 31 October 2016 and 22 May 2017 and again raise no issue of concern;
c)The observations made by the Child Care Centre raise no issue of concern and indicate that the children are happy and well provided for when they attend and that they attend regularly. The incident reports from the centre provide no information that might explain the bruising observed by Ms J on 8 February 2018.
The observations made by those persons do not rule out the father having caused the bruising to C on 8 February 2018 or that he is a person who may well expose the children to violence given his alleged history.
The evidence relied upon by the intervenor portrays a father who has a history of violence and threatened violence towards the mother and third parties including child safety officers and police. I expect there will be firsthand accounts at trial from the mother, child protection workers and police (if not others) of the threats and violence identified in Ms J’s affidavit. It seems that the father pleaded guilty to threats of violence made to his neighbours as recently as last year. The father does not dispute this in his affidavit. Recent bruising on C’s face has been observed by Ms J in circumstances where the child has stated the father hits him in the head and hits him with a stick.
As these are interim proceedings I am required to take a cautious approach. I cannot be satisfied that returning the children to the father at this time would not expose them to the risk of physical harm and the risk of exposure to violence. I am satisfied that the risk is unacceptable.
On the evidence as it currently stands, I cannot be satisfied that the paternal grandmother would be able to protect the children even if they were to be placed in her care for the reasons identified by the intervenor. I note that there was no affidavit from the paternal grandmother.
It is true that little is known about the current carers of the children but that of itself is not a reason not to make an interim order as sought.
The High Court held in Bondelmonte & Bondelmonte[14] where an interim order was made in favour of third parties who were not parties to the litigation:
51. … It may be that more information would be desirable before making a long term parenting order in favour of such third parties. But, as has been emphasised, the present case concerned the making of interim orders in circumstances of some urgency. Plainly, in those circumstances, there was sufficient evidence to ground the making of order …
[14] Supra n 11
This matter is listed for trial in July when all relevant evidence can be tested and a determination made after hearing all of the evidence and submissions on behalf of the parties.
In the meantime I note the intention of the intervenor to arrange for the children to spend supervised time with the mother, father (if considered safe to do so) and paternal grandmother.
Accordingly I propose to make the order sought by the intervenor.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 16 March 2018.
Associate:
Date: 10.04.2018
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